Monday, September 28, 2009

Can Nate Ybanez Ever Be Forgiven?

The following is an article that appeared in the November 30, 2006 edition of Rolling Stone magazine by Paul Solotaroff


His childhood was filled with unimaginable abuse. Then one day he snapped and killed his mother. Should it cost him everything?
PAUL SOLOTAROFF


Cruelty comes in many shapes, but on these scorched-earth plains of the Rocky Mountains, the misanthropy is panoramic. The heat is a hammer, 102 in the shade, and the baked-brown deadness goes on forever: treeless, drought-choked. What follows you off the ramp from I-76, though, past the slumped motels and up a short turnout to the prison gates, is the odor of livestock waste. The cattle themselves are hiding somewhere, but their stench surrounds you and impedes you, a fence of barbed-wire air you can't climb over.

Inside the reinforced foot-thick walls of the Sterling Correctional Facility in Sterling, Colorado, the meanness is no less bracing. Stone-eyed guards glare down from their perches as you sign the visitors' log, then follow behind, down the long gray hall that leads to a sliding door. Ahead is a room where, alone at a table, sits a tall young man with mild eyes. "Thanks for coming so far," he says, as though you'd left behind the colonized world to see him on the moon.

Nate Ybanez knows something of harshness. He's been in adult prison since he turned sixteen, when the Department of Corrections saw fit to cell him with murderers and child molesters. At the time, he weighed less than most girls his age, a skeletal boy with rock-star good looks and no clear means of defense. Still, he fought the thugs who tried to punk him out, earning for his troubles several stretches in solitary confinement. At twenty-five, he's grown to tensile strength, a six-two length of braided steel, and is left alone now by the jailhouse canines who feast on young boys. As rough as this is, with the gangs in the yard, "I'm safer than I was at home," he says. "Here, at least, I can see them coming. With my father, I just never knew."

He has on his back a stairway of scars from the scapula to the lower spine. Some were put there by his mother, Julie, a strict evangelical who never spared the rod. Others came courtesy of his father, Roger, an ex-soldier who ruled the household by terror. He beat his wife when the mood arose, battered their son with belts and fists, and once tried to strangle him while he slept. The welts on Nate's neck have long since healed, but not the imprint of the deeper crimes: the years of being molested by both his parents, starting in the shower when he was around five.

In 1998, Nate snapped and brutally killed his mother when she foiled his attempt to run away. He was tried and found guilty in less than two days and sentenced to life in prison without parole. His best friend, Erik Jensen, was convicted as an accomplice and is also doing life without parole. Thus condemned, they joined dozens of Colorado teens put away till the end of their natural days for crimes they committed as children. Barring a reversal in appeals court, they will live and someday die within walls like these, taking in the corrosive fumes of a compound built on dung. In a neighboring state like Texas or Kansas, they might have been offered treatment and training in a juvenile facility. But Colorado doesn't believe in such coddling. These boys have a job, it has all but told them: to suffer for their sins till they draw their last breath, and then go straight to hell.

Over the last dozen years, something peculiar has happened in our nation's jurisprudence. Despite crime rates that have dropped in every crucial indicator, America is jailing people at an astonishing clip and keeping them caged for ever-longer stretches in a panoply of vast new prisons. This run-up in convicts -- there are more than 2 million men, women and children locked up now, a 300 percent increase since 1980 -- has spiked most dramatically since the early Nineties, when a series of laws was drafted and passed during the worst of the crack pandemic. Much of that legislation was aimed at teens, whom Republicans identified in the 1990s as the next great scourge of polite society: the so-called "superpredators."

In state after state, the age at which kids could be tried as adults was lowered, binding children as young as twelve to the criminal justice system. Those convicted were sent to adult facilities instead of juvenile detention and given radically lengthened prison terms for a range of youthful offenses. And for kids who played any part in a killing, what awaited them was the world's most draconian verdict: mandatory life in prison without parole, also known as LWOP.

Nowhere is that paradigm more on view than in the state of Colorado, which had long been a state of bold extremes that split its political differences down the middle. But in the early Nineties, the balance of power tipped when two conservative megachurches put their thumbs on the scale. Both Focus on the Family, founded by the Rev. James Dobson, and the New Life Church, run by the Rev. Ted Haggard, plunged headlong into local affairs, urging their congregants to vote only for candidates who were "right on pro-family issues," and to contribute their time and political money to get such people elected. (Haggard, a fierce and prolific foe of "the homosexual agenda" and a former adviser to George W. Bush, was recently dismissed by the board of his church for allegedly paying a man to engage in sex during a three-year period.) In short order, the legislature swung heavily Republican and began to churn out bills that prolonged the terms for adult and juvenile offenders.

In the mid-Eighties, there were roughly 4,400 inmates in this live-and-let-live state; a decade later that number was 11,541, and Colorado was hemorrhaging money. Social services tanked and at-risk kids were left stranded, particularly abused boys over the age of thirteen, whom the state decided were sufficiently grown to fend off their attackers. One such kid was Nate Ybanez, who begged anyone who would listen -- doctors, cops, other kids' families -- for rescue from the violence waiting at home. But every time he ran, the cops brought him back, telling him sternly to mind his folks, who were only trying to raise him a proper Christian.

What makes a teenager kill his mother -- an act so dire it seems to controvert nature and thwart hundreds of thousands of years of genetic code? Many children are mistreated for years, beaten or belittled or shunted aside, but don't pick up a fireplace tool and cave their mother's skull in. Nate Ybanez did, though he is described -- unanimously -- as a sweet, well-mannered boy, the kind of young man other parents admired and wished their sons were like. It's a conundrum whose roots go back at least five decades, to a meatpacking town in the middle of nowhere and a man who raised his family in holy terror.
Davenport, iowa, is the kind of place that kids grow up to leave. Fifty-five years ago, Bernie Ybanez, Nate's grandfather, arrived there as a shell-shocked veteran of World War II, having slogged through the carnage of the Pacific theater. A Filipino with a short-stack temper and a glare that "scared you down to your shoes," as one acquaintance describes it, he eventually found work at the local Oscar Mayer plant and lasted there almost thirty years. But at night he went home and drank, then beat his wife and kids till he got tired. He was particularly brutal to his only son, Roger, and to Maria, the oldest of three daughters. In the copious rap sheet Bernie compiled, there is a record of his arrest for battering Roger, then two, till his eyes were swelled shut. When the boy got older, Bernie would back him into a corner and whip him with a metal buckle, or flog him with a stick "from an acre away all the way back home," says his widow, Kathryn Benisch.

Speaking to Miles Moffeit of The Denver Post, whose series on the state's young lifers first brought Nate's past to light, Benisch described her former husband as "a jealous alcoholic" who didn't like to let her leave the house. "Bernie gave me black eyes, tried to kill me once or twice, and threatened to dump me in a ditch," she said. But evidence suggests the crimes against his children were actually far more egregious. Bernie Ybanez allegedly molested his daughter Maria for years; when she ran away from home, he tracked her down, beat and choked her to death, then dumped her in a shallow grave, say police.

"There's not a doubt in my mind that Bernie killed her," says a law-enforcement officer who worked on the case. "She was buried a long time and we couldn't make the charge stick, but I know in my bones he did the crime." Bernie died of early-onset dementia, accused but never tried for his daughter's murder; still, the effect of his cruelty outlived him. "I knew him and the horrible way he treated his family, which had a negative effect on Roger," said Frank Benisch, who married Kathryn after she split with Bernie, in an affidavit supplied to Nate's appeals lawyer, Terrence Johnson. "It may have influenced his parenting of Nate, who had to endure incidents that I considered abusive. I believe the cycle repeated itself."

Roger, who grew up a brawler himself, wasted no time fleeing his father. He joined the Army right out of high school and took his longtime sweetheart, Julie, a pretty Davenport blonde, overseas. When his hitch was up, the pair came back to Iowa but never stayed put for long. From the start of their strange and embattled marriage, they established a pattern of suddenly pulling up stakes with little notice to family members or neighbors. A search by an investigator hired by Nate's lawyer found thirty-five addresses for Roger and Julie over a period of sixteen years, and further revealed that he'd used four different aliases in his business dealings. Money was always tight -- he sold insurance to soldiers before going bankrupt as a baker -- but it was far from the only rub between he and Julie. She was a devout Christian who gave him endless grief for listening to rock music and playing cards, and he was a cold and controlling ex-grunt who ran his house like a rear detachment. Everything had to be done to his code: the dinner dishes washed and dried just so; the thermostat locked on the setting he chose and never raised or lowered a notch. Failure to comply met with fierce reprisals: a smack, a punch, a chokehold.

They had a number of problems even before Nate's birth, said Roger's step- father, Benisch. Nate's arrival in 1981 only aggravated the strain on his deeply unhappy parents. They moved eight times in Davenport alone before heading to Illinois and points eastward. As far back as Nate remembers, there was constant strife: "They had all kinds of arguments, and he'd hit [me] with his hands or storm around and break stuff, punch holes in the wall. It just depended where he was in the house." (Roger Ybanez declined to be interviewed for this story and has denied all allegations of abuse.)

Even before he was old enough to grasp the rules, Nate was battered by his father for infractions both explained and otherwise. "My father was strong, but it wasn't his build that scared me -- he was incredibly unpredictable," says Nate. "I remember him beating me when I was a little kid for mowing my grandma's back yard crooked, just yanking me off the mower and pummeling me." Later, when he was eight, Roger knocked him senseless "for mopping the floor wrong, like he was training a dog. . . . He [always] cursed me horribly, saying I was worthless and stupid and a pathetic motherfucker all the time. Usually I tried to stay out of his way."

Roger and Julie were fiercely controlling of their son's time and contacts. They forbade him from seeing even his Christian school classmates, warned him sternly not to confide in teachers, and tried to limit his social encounters to youth-group outings at church. Aside from the women Julie met at Bible studies, nobody ever stopped by or called the house. It was, says Nate, like being raised in a root cellar -- kept in the dark with no one to talk to and only his mother for human connection.

Where Roger ran cold, a mirthless enforcer, Julie was an emotional geyser. She was deeply affected by charismatic preaching, and despite having to pack and move every six months, she always managed to forge close ties to a local church where the worshippers wailed and spoke in tongues. Stuck in a dead marriage, as well as friendless and broke, Julie leaned on Nate for her unmet needs. "She was real stressed out and would start crying and sobbing and say she couldn't go on anymore," he recalls. "I just wanted to be a kid, but she always made it sound like it was the two of us against the world, and if I didn't fill that role she went to pieces."

These "freak-outs," as he calls them, took various forms. She whipped him viciously as a little boy, whacking him with wooden ladles till he hurt too much to sit. Later, she delegated his beatings to Roger and bullied Nate in psychic ways. She told him over and over that he'd ruined her life and that she regretted giving birth to him. By the time he reached middle school, she was threatening to kill herself by driving head-on into traffic. Once, while arguing in the car with Roger, she grabbed the wheel from him going seventy miles an hour and tried to plunge the three of them off a bridge. Another time, on the rush-hour Loop in Chicago, she screeched to a halt in the center lane and screamed and sobbed as trucks swerved past or pulled up short behind them. Only fast thinking from Nate, who soothed her with Scripture, spared them a fatal rear-ender.

And so it went with this run-away brood, a danse macabre of seclusion and sadness interrupted by sudden eruptions of full-scale terror. Nate had no friends, never stayed long enough to make one, and rarely saw his grandparents in Davenport. With no one to talk to, he hid in his room, teaching himself guitar on a cheap acoustic. "I felt like crying all the time and couldn't see how it was going to change," he says. "They made me feel like this horrible kid who was causing all these problems when I wasn't. I had real good grades and never talked back -- but yet I never, not once, felt safe."

At some point, Roger took off for months, deciding after a strange, failed turn as a baker, that he really wanted to be a touring golf pro. Nate, then ten, drifted off with Julie to Chicago and then Virginia, camping in cheap motels at the edge of town. Given their isolation and lurid enmeshment, what happened next may have seemed foretold. One morning, Nate woke to hear sobs from Julie's room and went to check on her. "I ask her what's wrong, and she acts like she's not crying, then tells me to lay with her," he says. Embarrassed and aroused when she stroked his arms, he pulled away, but she lifted the blanket and told him to take down his shorts. "She says, 'That's nothing I haven't seen before,' and starts rubbing it back and forth, then stops and says she'll be out soon to make me breakfast."


"I was putting together the appeal for [Nate's co-defendant] Erik Jensen when I went to see Ybanez in jail in 2004," says Jeff Pagliuca, a veteran defense lawyer in Denver, whose motion for Jensen was later denied. "I was asking him questions about the physical abuse, and the way he answered and his general demeanor told me there was something more. I turned to my investigator as we left that day and said, 'I'll bet that kid was raped.' "

Dr. Richard Spiegle, a forensic psychologist with decades of experience assessing sex-abuse claims, took on the case. Making the long drive out to Sterling and back, he found in Nate a reluctant witness, someone who would answer his questions curtly or say he didn't remember. One day, during their monthly session, Nate said he was uncomfortable with physical affection and wouldn't take his shirt off around people. Spiegle asked him to do so then and saw groups of horizontal scars on his back, each six to eight inches long. Spiegle had him examined by a child-abuse expert, who confirmed that they were most likely caused by a strap or a belt.

Still, it was a year of sit-downs and letters before Nate confessed that he'd been molested -- first by his father, then by his mother. What came back were memories of showers with Roger, the purpose of which was to teach him proper hygiene. "Dad's showing me how to put soap on him," says Nate, "and then he tells me to get the soap off him. So I brush it off and he says make sure he's clean everywhere -- put my mouth on his penis. So I have to do what he says. I was really little at the time." Asked how little, he ponders, then holds his hand up, marking the height of a five-year-old boy.

He didn't recall how often that happened or when the incest stopped, only that he took many showers with Dad as a boy. Then, months later, he met with Spiegle to broach memories more painful still. In all, he recounted five episodes with his mother when he was ten to twelve years old, culminating in intercourse during a rare vacation to Disneyland. He said the incest stopped after they moved to Virginia and his father rejoined them there, but Spiegle sounds skeptical. "It's my experience," he says, that "sex predators don't stop until they're caught and jailed." Regarding the rapes, however, he has no doubt, despite a lack of evidence, which is common in such cases. "Particularly where the abuse is old, you almost never have the benefit of corroboration. It all comes down to whose testimony is credible, and out of the hundreds of cases I've testified in, Nate is right there at the top."

In 1996, the family moved to Colorado, broke and at loose ends. For months, Nate and Julie shared a motel room while Roger struck out on his own. By summer, though, their luck took a turn for the better. Julie found work selling radio ads, Roger was hired as a golf pro in Denver, and the couple reunited and found a shabby two-bedroom in the otherwise opulent suburb of Highlands Ranch. They enrolled Nate, 14, in a Christian prep school, but he got caught smoking dope and left soon after. By then, he was so depressed that such things ceased to matter. "It was almost unbearable, like drowning," he says, "but with people standing around and watching."

He was getting up the nerve to kill himself when, in the summer of '97, everything changed. Working at a pizza joint in Highlands Ranch, he met a kid who also played guitar. Brett Baker was a boy with a Porsche Carrera and a tight circle of rich, unhappy friends. He introduced Nate to Erik Jensen, who was fronting a band called Troublebound and looking for a kid who could play some rhythm guitar. Nate nailed the audition and was swiftly inducted into the stoned, raucous scene in Erik's basement.

The oldest child of a venture capitalist, Erik lived in a massive house with his own suite of rooms on the ground floor. There was beer in the fridge, his folks were gone during the day, and the boys in the band were tall and lean and played loud enough to loosen wisdom teeth. Within weeks, there were girls camped out in the den, passing a joint around.

"I'm not sure what it was, but Nate slid right in there and everybody took him to heart," says Jensen in the visitor's room of the Arkansas Valley Correctional Facility, at the bottom of the state in tiny Ordway. He's twenty-five years old now, and his hair, once spiked, is buzzed to the scalp in a jailhouse crew, and his former pipe-cleaner arms are carved and inked. His eyes meet yours in a neutral gaze, but they have the chill remoteness of a hard-shell man who has cast aside all faith in basic fairness. "He was almost like a brother from the day we met," says Jensen. "I knew he was having problems before he said so."

It's not immediately clear what their bond was based on. Erik was a scion of Highlands Ranch, a vast development due south of Denver that might easily pass for the plains states' largest mall. With its knots of seven-figure golf-course villas, resplendent views of the Rocky foothills and ranch-style town homes for the not-yet-rich, it mass-produced overindulged, spendthrift kids who treated their parents like bank cards. At Highlands Ranch High School, a leviathan place whose architect also helped design a "supermax" prison, the student lot was busy with German coupes, the girls breezed to Neiman Marcus during lunch, and the boys spent their time in the nearby tanning salons and gyms to keep up. But in much of Highlands Ranch there's a tangible substrata of rage behind the gilded doors.

Erik and his friends, a dozen or so kids of varying privilege, seemed to be perpetually pissed off; their anchor was their punk-rock anomie. As a bright, redheaded piano-playing kid in the exurb of Parker, Erik had been picked on a lot by other boys growing up. When the four-year-old Korean girl his parents adopted developed severe emotional problems and needed their full attention, Erik felt himself cast aside and began acting out at school. He smart-mouthed teachers and associated with troubled kids -- "the kind with broken wings," says his mother, Pat. The summer he met Nate, though, he seemed to have blossomed. He'd gotten his braces off and he chopped his long hair, spiking it blond -- suddenly, almost overnight, girls were calling at all hours. He continued, however, to cleave to his outcast crew, none of whom was any mother's dream.

"Most of us were dealing with our own dysfunctional families, and the music we listened to and the drugs we did were a big 'fuck you' to them," says Lisa Christopherson, a tall, striking blonde who dated Baker that year. "We'd hang in Erik's basement, blasting NOFX, or get someone older to buy us beer and climb this big tower near Brett's house. It got cold up there, especially at night, but we were so baked we hardly felt it."

Nate was dazzled by his new friends' wealth and their license to do as they liked. They had cars and allowances and nonchalant sex, trysting in the park at one a.m. or sneaking girls in for overnights. He, by contrast, had to beg his mom's permission to attend band practice after school. Nate solved the problem by ditching school, drinking and skateboarding with his boys. A number of girls came on strong with him, charmed by his lank good looks and his shyness, but they didn't get very far. "In the five months we dated, we were never intimate, and I tried," says Lindsay Fouty, 26, now a veterinary technician in Durango. "We would start making out, and then he'd suddenly get up and say he was thirsty and get water." Adds Christopherson, a cosmetologist in Denver, "There'd be eight of us in the hot tub in our bras and panties, and Nate would sit on the deck and give that awkward smile, while we wondered why he wasn't coming in."

Nate didn't mention his family often and seldom had kids over, but Erik detected there was trouble. "He'd freeze around his parents, just clam the hell up and stare at the floor," he says. "After a while, he finally admitted that his dad beat him up, and I was all on him to get help. I'd say, 'You don't have to sit there and take this, man. Tell someone -- anyone.' But he was scared." Still, word got around to his other friends, none of whom were taken by surprise.

Says Macy Urbanek, now a cocktail waitress, who dated Brett Baker that year, "One night I was there with Brett and Lisa, and his mom was throwing hot dogs in the fireplace with some of her church-lady pals. They were chanting that these were the dicks of their men and they were freeing themselves from them, and Nate was just so embarrassed. His mom, I think, loved him, but with a weird, sick love, and his dad, who I barely saw, was a vicious guy." Adds Christopherson, "What a scary monster. He'd walk in the house and just give you this look that made your insides flop."

Nate's experiment with freedom, which began that summer, soon came to a screeching halt. Late one night, he was startled awake to find his father's hands around his throat. He fought to wrench free, but Roger had him by eighty pounds and pinned him to the bed frame, squeezing harder. Nate might have died there, half on and off the bed, if his mom hadn't begged for his life. Roger let him up but was far from done, tossing his son off the walls of his room and stomping his possessions underfoot.

Nate took off, vaulting down the steps of their rented two-family and out into the freeze-dried night wearing just his jeans. Roger was hard behind him, having taken the car, but Nate knew those side streets cold. He made it to the woods and tiptoed from there, skulking through dooryards and strip-mall alleys till he turned up, shoeless and shirtless, at Brett Baker's. There, on the doorstep, he convulsed in sobs and for the first time poured out his story. The beatings, the verbal abuse, the emotional degradations -- he couldn't hold back any longer.

Brett's parents, mortified, heard him out, then called the Douglas County sheriff's office, demanding that Nate be placed in care and that deputies arrest his father for assault. (The Bakers declined to speak for this article, but their call to the sheriff was confirmed by the Jensens and Lisa Christopherson.) Within minutes, there were officers at the Bakers' door, ordering them to turn Nate over to his parents and have no further contact with him. As they stuffed him into the back of their cruiser, ignoring his cries to take him "anywhere but home," they warned the Bakers that they'd face arrest if they "harbored a fugitive from another family."

The following morning, there was a knock on the Bakers' door. They opened it to find Nate's dad and a large friend on their stoop, Roger wielding a baseball bat. "Brett called me and said, 'You won't believe this -- that maniac just threatened to kill us,' " says Christopherson. The Bakers promptly dialed the sheriff's office, and again the deputies came out. "But instead of arresting Roger, they asked him politely to go home," says Curt Jensen, who got the story from Brett's father that morning. "I don't know what pull Roger and Julie had with the cops, but they sure seemed to do their damn bidding."

Later that day, the Jensens met at the Baker home, and the two couples discussed their plan of action. "We decided that night to tell the authorities, which for us was a very big step," says Curt Jensen. "We filed a report with the Department of Human Services, saying someone needed to get him the hell out of there. A worker told us she'd go out and take a look, but said nothing came of it. It was the view of the department that boys could fend for themselves -- they didn't have the time or staff to baby-sit guys."

Nate confirms that he never saw a worker. The DHS, through spokeswoman Liz McDonough, says it won't comment on cases involving minors "in order to protect their privacy." As for Jensen's claim that it doesn't start files on boys who are thirteen and older, McDonough said, "That isn't and has never been our policy. If someone said that, they were speaking out of school."

Roger's attack on Nate, and Nate's flight to the Bakers, raised the final curtain on the family drama. The next nine months were a constant siege of fights and botched escapes. By his own calculation, Nate ran away from home a dozen times that year, hiding with friends or walking the streets till the deputies picked him up. In the file turned over to his appeals lawyer, Terrence Johnson, there are records of six "contacts" between Nate and sheriff's officers that fall and the following spring; though the cops themselves note that he asked for "relocation," they either took him home or held him for Julie and never called DHS, as required by law. "Had Nate been a woman who alleged abuse, they'd have arrested her attacker," says Johnson. "But in the case of an abused boy, the cops shrugged their shoulders and didn't pass him on to Human Services. About the best you can say is they were thoroughly incompetent. Or you could call this what it is: criminal negligence."

That winter, Roger left the house for good, moving to a flat across town. Nate and his mother took a small two-bedroom and declared they were starting over. They weren't. Julie put a tap on Nate's phone at home, crank-dialed to report Erik and Bret for arson, and followed Nate over to Erik's place, where she poured out her troubles to his mom. "It was always about how depressed she was and how rotten her life had become," says Pat Jensen. "Or she'd say how worried she was about Nate and ban him from coming here, then turn right around a week or two later and ask if he could come stay with us."

Nate slipped back into a deep depression and began drinking hard before breakfast. "I felt like I couldn't function without it," he says. Friends intervened, but their help didn't take, and besides, they weren't doing much better. "We started out light, with pot and beer," says Urbanek, "but then it got crazy with acid and 'shrooms, and the next thing you know, it's coke and speed and the cops are fucking camped in Erik's driveway. We all just lost it, and none of the parents noticed. It was like, 'Oh, you wrecked your Audi? Here's another.' "

The one bit of leverage Nate's parents still had: the threat of sending him to a Christian boot camp in faraway Missouri. They'd gone to the length of rousting him one winter night, tossing him, barefoot, into the back of their car and driving twelve hours to a sad-sack barracks just south of Kansas City. Nate tried to kick the rear window out, but his father pulled over, said he'd turn the car around and hand him to "a huge ex-con" he knew who'd rape him until he "broke." When they got to the boot camp, it was just as Nate feared, a "bunch of brainwashed kids" milling around, looking like they never wanted to leave. He begged his parents to take him home, agreeing to any terms they laid down for him. Grudgingly, they relented. But five months later, on June 5th, 1998, they woke him up and told him to get packed.

"He called me that morning, totally freaked," says Erik, who'd sworn to protect him like a brother. "The idea I came back with was we'd leave that night, go up to the mountains and camp a while, then head to California and get work. We had our guitars and some cash between us. We could've made a living playing clubs there."

The plan was to meet up after work that day, drive to Nate's place to grab his duffel bag and be gone before his parents came home. But by the time Nate finished his shift at Einstein Bros. Bagels and Erik, who was high, got around to picking him up, Julie's car was parked outside the house. Nate told Erik to sit tight for twenty minutes and come get him if he hadn't made it down by then. Twenty minutes passed, and Erik knocked on the door. Julie answered it wearing a "hateful" glare.

That's the last point the former friends agree on.

What happened next was the subject of two trials and three contradictory versions from those involved. This much is known: Shortly after Erik entered the house, Nate hit his mother in the head from behind with a metal fireplace tool, then held it against her throat and choked her with it. The cause of death was strangulation, though she'd been struck twenty times in the skull with the weapon and had three fractured fingers as well. She shed so much blood on the walls and floor that it took her son and two of his friends several hours to clean it, and additional hours to hide the evidence -- blood-soaked cleaning materials -- in a scatter of strip-mall dumpsters. There were, however, no witnesses, and the tossed evidence was never recovered, so the trials turned mainly on the accounts of the kids involved, particularly that of Brett Baker.

Erik's was the least persuasive of the bunch, which partly explains why he got life for murder instead of three-to-six for accessory after the fact. He says that Julie asked him to go wait in Nate's room while she and her son had a "family talk." He claims he did as ordered, figuring he'd gather Nate's things while the two of them argued in the parlor. But once down the hall, he heard the "bangs and crashes" of two people "fighting to the death." He insists, however, that he stayed put in the bedroom till Nate yelled out to "bring plastic wrap." Only then, after running to the kitchen across the hall, rummaging the drawers for the box of wrap, did he enter the parlor, he says. There, he saw Nate and Julie bathed in blood and grappling on the red-soaked rug. "Then I passed out from seeing all that blood, and when I came to, he was behind her with fireplace tongs, choking her to death with it," he told a jury. "We both just sat there, in shock, I guess. Then he passed the thing to me and I guess I dropped it."

Brett Baker, who got a call on his pager from Nate shortly after the killing, told a quite different story. He said that when he got to Nate's home that night, Erik was giving the orders, telling him to grab a wad of paper towels and start cleaning up the gore. Both boys were covered in blood, he said, and though Nate first claimed he'd done the crime alone, Erik later conceded to Brett that he'd struck Julie three times, once so hard the tool lodged in her skull and spattered the wall with blood when he yanked it out. He concocted the cover story they told the cops, provided Nate a shovel and a can of gas to dispose of Julie's corpse, and talked Brett into fleeing with him after Nate was arrested for murder. They ran to Mexico and stayed for a night, then called their fathers to come get them.

In court, Brett was far from an ideal witness. He'd lied to the cops and had been deceptive in a polygraph test, but he managed to cut a sweetheart deal with the prosecution. Still, it was largely his testimony that convicted his friends and sent them to prison for life. Under enormous pressure from the county DA, who threatened for a year to charge him with murder, he took the stand to say that on the day of the crime, he'd visited Nate at the bagel store, where Nate told him he was going to kill Julie that night and Erik knew and was "scared shitless about it." That part of his story rings patently false -- a third friend who was with them never heard the conversation. "I did run into Brett that afternoon," says Nate, "but he lied and said whatever the DA told him to get light treatment in the case. Cops are good at intimidating people, and Brett was easily intimidated."

Perhaps because Nate's version of the events that day is so un-self-serving, it seems the most credible of the three. He takes sole blame for Julie's death. He said his mom had fixed him with that hateful gaze when she opened the door to find Erik, and that seeing it, Nate "snapped" and bashed her skull in. He said as much to the sheriff's deputies who found him before dawn on June 6th, standing beside his mother's body in a park not far from home. Six years later, he repeated it in court when he testified -- against his own best interests -- at Erik's appeal hearing, which failed. And while Erik built a defense around the crackpot notion that he was too stoned to have done the crime, Nate bridles when asked if he was drunk or high the night Julie died: "If I had been intoxicated, I'd have been able to handle things, but it was all too much for me. If my mother hadn't died that day, I would have. Just thinking about it now makes my heart hurt."

No less haunted are Erik's parents, who've made a sort of shrine of his downstairs suite. Lining the shelves of his walk-in closets are clear bins that store every toy he had from middle childhood up, a museum-quality trove of memorabilia in a life stopped short in Act I. "You say to yourself, 'Why would a kid that successful throw it all away for something stupid?' " says Pat, in her sumptuous parlor. "The only thing I've come up with is that, from the time he was little, we urged him to take care of weak kids. He was always befriending boys whose moms were beating them up or whose fathers were coming home drunk, and he was outraged kids could be treated like that. Maybe we did too good a job."

Erik Jensen was convicted in August 1999 in a trial muddied, if not poisoned, by the Columbine shootings, which had happened four months prior and just ten miles south. The drumbeat was no less loud in October, when Nate came up for trial and was tried and convicted in under a day and a half -- less time than it usually takes to select a jury in a case of first-degree murder. Nate was about to be let down again, this time by his attorney. In many states, minors charged with serious crimes are appointed an independent legal counsel. A guardian ad litum, as the adviser is called, can help them reach informed decisions about their own defense and point out any possible conflicts as their trial approaches. Given Nate's lifelong abuse at home, someone should have questioned his father's swooping in and hiring his lawyer. But Nate was charged as an adult offender and thus deemed old enough to make his own choices -- even if he was so beclouded after the killing that he sat in the courtroom drawing childlike doodles while being arraigned. A judge had a chance to amend this oversight when Nate's lawyer, Craig Truman, filed a preliminary motion to have his confession tossed. At the hearing, a tape of the interrogation was played to prove that his father left the room before Nate talked, which in fact rendered his admission moot. But before he stormed out, Roger was heard telling Nate, "You're a fuckface and a piece of shit!" "That alone should have been grounds for a guardian ad litum," says Curt Jensen. "When the man paying your legal fees wishes you the worst, what chance have you got to win the trial?"

Mary Ellen Johnson, the director of the Pendulum Foundation, a nonprofit group whose lobbying arm seeks to "restore sanity" to the state's sentencing laws, believes the failure of the system to protect Nate's rights was simply business as usual in Colorado. "I've never seen a place where the deck is so stacked against kids getting a fair shake in court," she says. "These boys are too young to know their best interests, some are schizophrenic or severely bipolar, and no one ever bothers to check their home background, so the DAs are shooting fish in a barrel. They've got a ninety percent conviction rate when they take them to trial."

To be sure, Nate's lawyer had his work cut out for him: a deeply devout victim whom the DA portrayed as a self-denying saint; a defendant who belonged to a punk-rock band with the jury-baiting name of Troublebound; and prosecutors not the least bit inclined to temper justice with mercy. But Truman had ample weapons himself: Nate's history of battering at the hands of his parents, and relatives eager to vouch for it, along with witnesses like the Jensens, Bakers and others to document the abuse; the police files reflecting his cries for help and the DHS records of home visits; and a roster of highly credentialed experts on the role that abuse plays in parent killings. There are well over 100 teens sitting in jail in America for murdering one or both parents, and discounting the handful with severe mental illness, they fall into two distinct types. In the first and largest group are the kids who suffered years of grotesque cruelty at the hands of their mother and/or father. In the second are what Kathleen Heide, a criminology professor at the University of South Florida and author of Why Kids Kill Parents, calls "dangerously anti-social kids, many of whom have been overindulged since childhood and have no tolerance for the word 'no.' They kill for self-interest -- for instance, when parents put their foot down and belatedly try to set some limits." Often, says Heide, these trials devolve into a contest between the two types: the defense lawyer working to portray his client as a torture victim who snapped, and the state asserting that he or she was, instead, a spoiled brat.

"Any competent attorney will bring on an investigator and mental-health expert to gather facts," says Heide. "Was the abuse severe and long-lasting? Did other people know about the ongoing harm, at least the physical kind? Did the child make an effort to go get help? Did he or she try to escape the house? If most or all of those factors were present, you have a powerful story to tell the jury, and often enough leverage to reduce the charge to something like manslaughter."

Truman was paid a flat fee of $90,000, which was more than enough money to shine a hard light on Roger and Julie. But the man signing his checks -- half up front, half on verdict -- was, of course, Roger Ybanez. And so Truman (who declined to speak for this story, claiming attorney-client privilege) hired no investigator, called no abuse experts, and ignored the chorus of pleas from Nate's family, the Jensens and the Bakers to let them testify. He spent virtually no time with Nate before trial (his notes, which ought to have been copious for such a case, ran to exactly four pages). When the trial started that fall, Truman called no witnesses, produced no evidence and only broached the subject of Nate's abuse to deride it as a sham. His entire case consisted of opening and closing statements in which he freely conceded that Nate killed his mom and may have had "a hole in his soul." The jury came back after ninety minutes with its foregone conclusion: guilty.

"If his lawyer had done his job, it could certainly have changed the outcome," says Jerry Huling, a printing-products distributor who served on the jury. Seven years later, he still seems pained by the verdict. "In light of what I know now, I feel Nate needs another trial. I don't even know that he belonged in adult court, based on circumstances that weren't presented. I'm a very private person with nothing to gain by speaking out, but something wasn't right in that courtroom."

Terrence Johnson, Nate's appeals lawyer, puts it more bluntly. "It's one of the worst jobs ever by a trial attorney. You're entitled to a constitutional defense in court, meaning a competent lawyer who puts your interests first and signs a piece of paper that says so. I don't even have to show that he tanked the case. All I have to do is prove the conflict of interest, and there's enough on that to file a motion tomorrow."

Much is riding on the outcome of that hearing. Should a judge find that Nate was denied due process, he would grant him the right to a second trial and ample leverage to negotiate a deal. "The fact is, this should've been a manslaughter case, with a term of eight-to-twelve," says Johnson. "I would hope I could get him out on time served." When and if that happens, Nate's ex-friend Jensen would have grounds to seek a reduction of his own. Says his lawyer, Jeff Pagliuca, "There's no law that says they have to release my guy if his co-compliciter gets out, but it would look bad for the DA to keep Erik in if the kid that swung the poker goes home."

What stands in the way of an appeal, though, is money, or the lack thereof. It costs tens of thousands to fly in expert witnesses on the subject of legal ethics, and Johnson's client is destitute. Nate earns the sum of fifty dollars a month making office furniture in jail, and some of that goes for basic amenities like toothpaste and toilet paper. Johnson was paid a retainer by Jensen's parents, but that money ran out months ago, and he has since been working pro bono. There is an online nonprofit to raise cash for Nate's defense (Friendsof NathanYbanez.com), but the returns thus far have been negligible. The only other option is an appeal for clemency, but that, say his backers, is the longest of long shots.

In the meantime, Nate doesn't dine out on hope. He's spent about a third of his life behind bars -- sixteen months in county awaiting trial, three years in the dust bowl of Arkansas Valley, and five years steeping in the methane fumes in this hog farm of a prison -- but has kept himself busy becoming a scholar. He earned a G.E.D. within months of his arrest, and he reads deeply and widely in abstruse subjects like geology and quantum physics. Raised a lockstep Christian, he has converted to Buddhism, waking up early to meditate, another self-taught art. "When I read the Dalai Lama, my anger, which was horrible, began to dissipate," he says. After several combative sit-downs with Roger in prison, Nate barred him from coming again: "He didn't like the fact that people were helping me and said I should just stay here." Nor does he hear from the rest of the family. He rarely, if ever, gets visitors.

But after years of withdrawal from his high school friends, he has begun again to reach out by mail. They, particularly the girls, were the closest he came to a connection in the world, and for one brief stint, twelve ravishing months, they brought him fully to life. Recently, he wrote to Lisa Christopherson, thanking her for some photos she'd sent. He described his jailhouse study of the Kabbalah, then recounted a couple of stop-time moments he'd shared with her that summer. Both took place during sudden downpours of "soft, huge droplets of rain," when the two of them dashed out into the street and ran around, soaking wet. Those romps, he writes, "were either a gift from some force or a mistaken shift in the cosmos." They were also the "only two times in my life I felt safe and happy and complete. Home is the word I like to use, and I've wanted to return to that place ever since."

Monday, September 21, 2009

StopDirectFile.org

It is imperative that all of you reading my blog go to this site and lend your support - your voice DOES count, and when we all put our voices together the powers that be will hear us ROAR for the ones that currently do not HAVE a voice. Don't think, "I'm just one person, what can I do?" We are all one and we need every single one of you to stand up and support this organization so that we can end direct file in this country.

Nathan Ybanez Hearing - Thursday, February 26, 2009

The mood in the courtroom this morning seems lighter somehow as proceedings are about to get underway. A comment is made by the prosecution about “ready to be done with this”, and there is an air of not excitement, but…I don’t know. Just different somehow. Nathan is already present, but he looks the same. Pensive, subdued. Chad Williams goes over and pats him on the shoulder, asking how he is and how he slept, his affinity for Nathan apparent. I personally can’t imagine being stuck in a courtroom like this day after day – what a soul robbing and exhausting experience this has been for me and I’ve only been doing it for four days. I realize how incredibly lucky Nathan is to have even made it this far, to finally be getting his 35c hearing; most never see this day. So I try to dwell on the light at the end of the tunnel and look ahead for him. This is all for him and getting him a new trial and ultimately someday, freedom. I would do and have done much worse for friends. Sitting on a courtroom bench typing for 6 hours everyday is the least I can do.

Mike Gallagher, his Tommy Lee Jones appearance even more grizzled this morning, looks a bit tired but as set and determined as ever. It has been obvious all week that he has brought his A game and has been working Nathan’s case from every angle.

The judge enters, we all rise, and proceedings begin once again with Roger Ybanez taking the stand. The judge advises him that he is still under oath (not that that matters, of course) and he takes a seat.

Mike begins by asking if there were any difficulties with Nathan while the family was living in Omaha. Roger twice denies there was until Mike shows him transcripts of a journal Roger found of Nathan’s while Roger was packing up the family belongings in which Nathan wrote how he didn’t want to leave Omaha, he hated his parents and wished they would die, and also talked about killing himself. Roger claims he did not know about any of this while they were in Omaha and only found out through the journal as they were leaving.

Mike then asks Roger if there was any attempt on the part of him or Julie to get Nathan any help or counseling for Nathan based on what they found in the journal? No, Roger replies, his mother just “talked to him”. Even though Roger and Julie claimed to be “very upset and distressed” over what they saw in the journal, they did nothing except talk to him about it. They then burned the journal.

I didn’t catch the question that Mike asks here, but Roger again states at this time that Nathan was not able to understand the consequences of his actions after the murder and during the trial.

Roger is then asked if he ever challenged Nathan to a fight? Roger: Yes. Mike: When? Roger: When he was 16. Mike: Did he fight you? Roger: No. Mike: Why not? Roger: Because I suppose he was afraid.

Mike asks Roger if he ever got verbally abusive with Nathan in front of a high school counselor on one occasion. Roger replies yes. Roger states that he only said, “What the hell are you doing?” to Nathan in front of the counselor. Mike then pulls the report and points out that Roger really said, “What the fuck are you doing?” and the counselor then asked him to leave.

Mike then asks Roger if at a counseling session once, did the mediator ask him to stop verbally abusing and belittling Nathan? Yes, Roger replies. Mike: Did Nathan ever attack you? Roger: No. Mike: But you attacked him? Roger: Well, I wouldn’t say I attacked him (Of course you wouldn’t, dirtball. The word “attack” isn’t in the vocabulary of an abuser).

Mike: Who is Camilla Mottl? Roger: Julie’s friend. Mike: You knew her? Roger: Yes. Mike: She visited your home? Roger: She may have. Mike: But Julie would have had plenty of opportunity to speak with her freely on many occasions? Roger: Yes. Mike: Would you say she was someone that would have had knowledge of things that were going on in your household? Roger: Yes.

Mike: During the time period right before and after you moved out of the apartment, was there another woman in your life? Roger: No, there was no other woman.

Mr. Sears, prosecutor for the State, takes over with his cross. Roger talks about how he moved out of the apartment because he and Julie felt that if he left there would be less “volatility”, (his word) in the household. He moved out around Valentine’s Day, 1998. The murder occurred in June of 1998. Sears: How many times did you come to the apartment? Roger: Three to four times. Sears: How many times did you see Nathan during this time period? Roger: The same. After I moved out, he seemed to settle down. Some of his old patterns returned such as drinking, drugs, skipping school, curfew issues, but he was much better.

When asked to describe Julie’s style of parenting, Roger reported that she was a talker, not a yeller or a curser.

Mr. Sears once again establishes that Julie asked Roger to be the bad cop, the enforcer, scare Nathan straight, lay down the law, put some fear into him, on the night of the choking incident. Roger still denies doing anything damaging , and still denies the choking. He states Nathan was scared and said he would start to behave, but then the prosecution tries to establish that within a few minutes of this happening Nathan ran out of the house and ran away, breaking household rules within minutes (yeah without even bothering to pack or dress, he was only wearing his underwear. That’s how I would run away if I was a teenager, I want to be seen by everyone walking along the street in my underwear).

Sending Nathan off to military school was then discussed, along with all the things Nathan was going to have to give up when he went. Roger remembers Nathan as saying he didn’t think he could do that. Sears: Did he get angry or fly off the handle? Roger: No? Sears: Did he strike you or Julie? Roger: No.

The prosecution goes back to the journal that Roger found in which Nathan expressed that he hated his parents and wished they would die. Sears asks if Roger ever read anything about abuse, Germany, etc. No, Roger replied.

The high school counselor incident is brought up and gone over again.

The details of the night Roger went to the police station are gone over again.

The prosecution then moves on to the day of Nathan’s arrest and how Roger came to hire an attorney for Nathan. Roger states that he met with a public defender, decided he wanted more, and eventually hired Craig Truman because he was told by a friend that Craig was one of the top criminal defenders in the Denver area. Roger then admits that he paid most of the money to Mr. Truman personally, but that a little came from his mother. (Oh really? Hmm, how interesting. That blows a hole in one of the prosecution’s major points of earlier in the week). Sears: Did Craig represent YOU in any way? Roger: No. Sears: Did you run out of money at some point? Roger: Yes. Sears: Did you go talk to Craig? Roger: I wrote him a letter. Sears: When was this? Roger: Sometime after the preliminary hearing, in the fall. Sears: Did you tell him that you would maybe pay him some money in the future when you could? Roger: No, I told him I couldn’t give him anymore money at all and that if he wanted to get Nathan a public defender then I would understand. Sears: But Craig said he would stay on, is that correct? Roger: Yes. Sears: Did Craig continue to consult you after that regarding Nathan’s case? Roger: No, it was mostly chit chat after that.

Sears then directs the questioning around when exactly Nathan started to change. Roger states that in May of 1998 they found pot in Nathan’s room and he was not made to go back to Colorado Christian Academy because Nathan had been labeled a rat (Roger called the parents of the kid that had given Nathan the pot) and Nathan was afraid of getting beat up. It was later on that summer when he met Brett Baker and Erik Jensen at the local pizza parlor when all of the other stuff really came into play.

When Mr. Sears asked Roger what the difference between juvenile and adult court was, the defense objects and it is sustained, since there is no foundation that Roger knows anything about either. Sears gets his question answered in another way after Roger states that it was his feeling that in juvenile court he felt that Nathan would have a better grasp of what was going on and be able to understand it. Adult court, Roger stated, was much more serious.

Sears asks Roger if Julie ever threatened or abused Nathan. No, Roger replies, not in front of me. Sears then asks about the threat that Erik Jensen made to Julie to kill her. How did Nathan react when told one of his friends had threatened to kill his mother? Roger stated that Nathan didn’t believe it.

Sears: You were the primary disciplinarian in the family, weren’t you Mr. Ybanez? Roger: Yes. Sears: Where on Nathan’s body did you spank him? Roger: On his read end. Sears: Did you ever strike Nathan on his back? Roger: No (lie alert here, plenty of them coming up!!) Sears: Did you cause those marks on Nathan’s back? Roger: No, I did not. Sears: Did Karen Maestas come and visit you? Roger: Yes. Sears: Did she ask you to have pictures taken of your own back in order to preserve them? Roger: Yes. Sears: Was there ever a comparison made between the marks on your back with the marks on Nathan’s back? Roger: Yes, Julie did. The exhibits of the pictures of Roger’s back are then entered with the court.

Sears then goes over the subject of the journal again. Roger “can’t remember” if Nathan ever talked about suicide in the journal, even though yesterday he said otherwise. Julie talked to Nathan on her own about the journal, and even though Roger won’t admit that the subject of suicide was in the journal, Julie was so upset about whatever was in the journal that she asked the police to come to the apartment and help her.

Sears: Did you ever knock Nathan’s head up against a bed post? Roger: No. Sears: Other than the incident where you pushed Nathan up against the wall, did you ever in any other way physically touch Nathan? Roger: No. Sears: Did you ever strike Julie? Roger: Yes, once when I was 19. Roger: Did you ever threaten her? Roger: No. Sears: Did you ever wield any weapons against her? Roger: No.

Mr. Sears then goes to Roger’s upbringing as the prosecution did yesterday, and the incidents surrounding his sister Maria’s murder. Their intent, of course, being to establish that no abuse occurred in Roger’s household growing up and that Roger’s father had nothing to do with his sister’s murder. Roger is only too happy to accommodate him. The judge then states that we will take our morning recess.

We return from the break and questioning by the prosecution of Roger resumes. The incident where Nathan was being taken off to military school in the middle of the night was covered. After being caught by the police at an underage drinking party, Nathan’s parents (mainly Julie) made the decision that Nathan had to immediately be sent away to such a school. The police were then called for a civil assist in case there was any trouble with Nathan or he resisted going. The police followed the family car for awhile, but after they peeled off, Nathan started kicking the back door and window of the car. Roger pulled over and that’s when the incident where Roger challenged him to a fight took place. Whatever was said outside of the car, even though a fight never took place, whatever was said was enough for Nathan to behave for the rest of a twelve hour car ride. Boy, that must have been some father/son talk! No threats, no nothing, eh? Okey dokey, whatever you say.

The rest of the questioning is along these same lines, in which the prosecution just wants to portray Roger as a fine, caring, concerned, firm father and disciplinarian. Nathan was just SO out of control, we were at our wit’s end, we didn’t know what to do, nothing was working, blah, blah, blah. The prosecution then asks Roger, if as a lay person, he believes that anything ever happened in the household or occurred during Nathan’s upbringing that contributed to him killing his mother? There is an objection by the defense, but the judge allows it only under the understanding that this witness is not an expert. Roger replies no.

Mike cross examines, based on this last question. Mike: Based on the fact that Nathan had never been violent towards anyone ever in his life, your first thought after finding out that Julie was dead was “he must have flipped”, right? Roger: Yes. Mike: Then your next thought was, “he must have been with someone else, right?” Roger: Yes. Mike: And right away you put your finger on Erik Jensen, isn’t that right? Roger: Yes. Mike: But Craig Truman never asked you about any of this during the trial? Roger: No.

The marks on both Nathan’s and Roger’s backs were then briefly brought up again. Mike just wanted to confirm that neither Nathan nor Roger were born with these marks. Roger replies no. The prosecution and the defense then rest in their examination of this witness and Mr. Scumbag is permitted to step down.

Dr. Daniel Fisher is then sworn in. He is a board certified adult psychiatrist and is employed by Centennial Peaks Hospital in Louisville, CO. Mike: At some point did you have a patient named Nathan Ybanez? Dr. Fisher: Yes, he did, and he is then asked to point Nathan out in the courtroom which he does. Dr. Fisher was Nathan’s attending doctor while Nathan was at Centennial Peaks. Mike: Were you aware afterwards when Nathan killed his mother that this was a former patient of yours? Dr. Fisher: Yes. Mike: Did you think that someone might contact you? Dr. Fisher: Yes, I thought it was highly likely. Mike: And DID anyone contact you? Dr. Fisher: No. Mike: Craig Truman never contacted you or made an attempt to get Nathan’s patient file from you? Dr. Fisher: No.

Dr. Fisher then discusses what types of therapies are covered at Centennial Peaks such as drug dependence, family issues, etc. His education is discussed. He attended, among other universities, the University of Michigan, but I decide not to hold this against him since he’s on our side. Without going into his whole resume, the prosecution rises and concurs that this witness can be certified as an expert in his field to speed things along.

Dr. Fisher is directed to an exhibit which shows Nathan’s medical record during his stay at Centennial Peaks. Mike asks if this record would have been available by the time of his trial. Dr. Fisher replies yes.

Mike asks Dr. Fisher to explain the procedure when someone is admitted to Centennial Peaks and Dr. Fisher goes over this. Mike then asks if there was a specific incident in the Ybanez household that triggered Nathan being taken to Centennial Peaks. Dr. Fisher replied yes. Mike: Would smoking pot by yourself be enough to get you admitted? Dr. Fisher: No. Mike then directs Dr. Fisher to the discharge summary of Nathan, as written by Dr. Fisher. Mike then jumps ahead a little bit and wants to just confirm that Dr. Fisher has not seen Nathan since 1997 (except on TV after the murder), and no one has shown Dr. Fisher any trial transcripts and Dr. Fisher has no knowledge of this case other than the two days he spent with Nathan back in 1997. Dr. Fisher confirms that this is true.

Dr. Fisher then reads the discharge summary out loud since he apparently has horrible handwriting and Mike cannot read what Dr. Fisher wrote so long ago. Sometimes neither can Dr. Fisher but he reads that Nathan had been smoking pot daily, his grades were failing, he had run away 3 times, and there had been the choking incident between Nathan and his father. Mike points out that the discharge summary states that the violence between Nathan and his father was described by Nathan as his father choking him and jumping up and down on his stereo and smashing it, while Roger describes it as only “a few smacks”, and Julies describes it as a “backhand”. Nathan’s complaints in the document were, “I don’t want to live with my parents anymore, I don’t respect the way they are acting”. The descriptions from Julie, Roger, and Nathan describing the choking incident all vary. Mike asks why this is. Dr. Fisher replies that he takes everything from everyone with a big grain of salt and took these descriptions to mean that the truth lay somewhere in between. He thought the mother was perhaps trying to mitigate what the father had actually done so that he wouldn’t be charged with child abuse.

Dr. Fisher summarized in his discharge summary that Nathan was a 15 year old juvenile with no prior psychiatric problems. Marijuana use, running away, a family fight, mood changes, decreased energy, isolation, history of suicidal ideation at 12 yrs old, doesn’t get along with father. Father distant and punitive, mother emotional and controlling.

Mike goes into depth over all of Dr. Fisher’s reports in order to clarify that there was documentation by psychiatric professionals that there was abuse in the home, Nathan didn’t want to live there anymore, and that other people had called Social Services about the violence in the home. Dr. Fisher concurs with all of this.
When Mike asks Dr. Fisher what his hope was that Social Services would get involved with this family after Dr. Fisher called CPS (Child Protective Services), Dr. Fisher expressed that it was his hope that CPS would get involved in “an intrusive way with a positive outcome”, as opposed to what some counties do, “thanks for the call but this doesn’t meet our criteria for abuse, click”. Dr. Fisher then states that given what subsequently occurred (Julie’s murder) it was obvious that intervention by CPS had been necessary.

Dr. Fisher was asked if some of Nathan’s problems were contributed to by the family moving so much. Yes, he replies.

After our lunch break, Mike wants Dr. Fisher to talk a little about Nathan’s psychiatric symptoms. In the 2 days he was with Dr. Fisher, there were no obvious indicators or symptoms from Nathan, nothing flagrant. He was quiet and guarded the whole time he was there. Therefore, Dr. Fisher had to rely on reports from the family.

Dr. Fisher then defines for the court the difference between Oppositional Defiance Disorder and Conduct Disorder. Oppositional Defiance Disorder is an opposition to and defiance of authority figures. Conduct Disorder is much more serious. Since a juvenile cannot be classified as a psychopath this is the closest definition of it to abhorrent behavior for juveniles that there is. The defense then has no further questions and rests.

Prosecutor Sears begins his cross. He establishes that Dr. Fisher treats primarily adults and not children, and that in the time Dr. Fisher has last seen Nathan he has probably seen 5,000 to 10,000 patients. Dr. Fisher states that he recognizes Nathan and remembers him, but other than that he is relying 99% on the past written transcripts today. Sears establishes that had Dr. Fisher known of a serious threat to either Nathan or others, Dr. Fisher would not have let Nathan go home. Dr. Fisher also states that he recommended family therapy, as it was obvious that there was some sort of family-wide dynamic going on. Sears has a few more unimportant questions for Dr. Fisher and then he rests as well.

We take a short afternoon break and I am late coming back in, so I miss the introduction of the next witness by the prosecution, a one Dr. Hanson. He met with Nathan on July 1, 1998, shortly after the murder. He administered three psychological tests to Nathan, including an IQ test. Prosecutor Rosenthal is the one questioning this witness and she seems to want Dr. Hanson to make some sort of diagnosis from these tests, after he has already stated that you cannot make a diagnosis of an individual simply from psychological tests. The prosecution nevertheless desires to put us all to sleep by going over each test and its results ad nauseam.

By the time the defense gets to cross examine, it is almost 4 pm. So much for us wrapping things up today, I think to myself. Mike Gallagher establishes with Dr. Hanson that these psychological tests merely form hypothesis and not diagnosis and Dr. Hanson affirms that this is so. Expecting many more questions, I am surprised when the defense rests.

The next , and last, witness I soon learn, is also called by the prosecution. Dr. Richard Pounds, a forensic psychiatrist like Dr. Spiegle. He works in Pueblo, CO for the Department of Corrections. He was provided over 4200 pages of documents in this case, including Dr. Spiegle’s report. Mr. Sears asks if Dr. Pounds had any problems with Dr. Spiegle’s report. Of course he did and explains why. First and foremost he did not see a diagnosis in Dr. Spiegle’s report. He also thought it unethical that Dr. Spiegle and Nathan were having correspondence in the form of letters between them. This brought up boundary issues in his opinion, and blah and blah. This witness is clearly here to rebut Dr. Spiegle’s findings and argue against what Dr. Spiegle’s assessment of Nathan was so I quickly lose interest in his testimony. The prosecution is again just doing their job and I’m getting more than a little weary of it by now.

I had seen Dr. Pounds before the break sitting across the aisle in the courtroom and I had thought, “who the hell is THIS guy and who let him in here?” He had a bit of a wild eyed stare and looked like he was in need of some psychiatric tests himself. His hair hung way below his shoulders, his bangs covered his eyes, and his beard was too thick and bushy. He did, in fact, resemble a chubby bush. Dude, here’s a tip: I know people aren’t supposed to judge others by their appearance, but in your profession particularly people would take you a lot more seriously if you got some clothes that fit you, cut or at least pulled back your Bob Seger haircut from the 70’s so we can see your eyes, and learn how to not walk like a Heffalump. Granted, you work around inmates all day and perhaps want to blend in, but come on. Really? You’re a forensic psychiatrist?

His overall opinion of this case was that this was a deliberate act on Nathan’s part. There was no pattern of abuse in Nathan’s household, and it sounded to Dr. Pounds as if the parents were trying to rein in Nathan’s behavior. It was his opinion that Nathan showed a lack of concern for others, rules, and laws. It is was also Dr. Pound’s assertion (although he never spent any time with Nathan personally) that Nathan had Conduct Disorder and not Oppositional Defiance Disorder. It was also his opinion, of course, that Dr. Spiegle’s theory that Nathan had acted impulsively, was bullshit (my word, not his).

Chad Williams then takes over for the defense and asks Dr. Pounds if choking your child, slapping your child, verbally abusing your child, or throwing your child up against the wall is ever appropriate behavior when disciplining your child? Dr. Pounds replies no. That’s all Chad has and the defense rests. Again I am surprised that the defense doesn’t have more.

The prosecution rises again and asks another question of Dr. Pounds regarding if Nathan was abused by his father then why did he kill his mother. The defense objects as being speculative, the prosecution rephrases, and I don’t even remember what Dr. Pounds said, it was not significant.

The State then announces that it rests their case and has no further witnesses. The defense rises and states that it also rests. I have been typing away over in the corner, oblivious. Suddenly there is silence in the courtroom and I look up, stunned. I realize that the hearing has come to a sudden and uneventful end. That’s it, it’s over just like that.

Since this is not a trial, there are no closing arguments. Instead the defense and prosecution rise and request of the judge that they be allowed time to view the transcripts from this hearing before they file their responsive briefs and come back before the judge. Judge Hopf grants this request and I then find out that the responsive briefs will be filed 40 days after both counsels have received and read the transcript from this hearing. I will call and find out from the county clerk on Monday how long it takes to type the transcript and when it will be ready. I will then have some further idea of when court will reconvene to listen to the responsive briefs, so stay tuned to the blog. I imagine another court date may be set for late April or May. Then we have to wait, I would imagine, another 30 or so days for the judge to make her decision. So we’re talking June or July possibly before we get her decision. The wheels of justice do indeed grind slowly.

I sit and slowly gather my things as the defense and prosecution mill about, not wanting to leave Nathan. I get Nathan’s friend Julie’s email address and telephone number and tell her I will be in touch. She does not ask for mine. Nathan stands up finally and the deputy leads him the few feet to the door which will take him back to his holding cell. He finally shoots me a glance and is gone. I am instantly flooded with emotion and quickly leave the courtroom before I am overcome. I was not expecting such an abrupt end to the hearing, but didn’t really know what else I HAD expected. It is over and there is nothing left for me to do but go home.

Back home with my family, we go out to dinner as I am exhausted and don’t feel like cooking. My nephew is also visiting and we want to make him try sushi. Even though I wasn’t able to spend much time with him this week due to the hearing, he came with me a few days and actually thanked me for the court experience. He said he learned a lot. I looked into his 23 year old face and saw all the hope and promise of a bright future that I hope will someday be realized by another young man. I then proposed a toast. “To Nathan”, I said.

Nathan Ybanez Hearing - Wednesday, February 25, 2009

Promptly at 8:45 this morning, Nathan is brought into the courtroom from his holding cell and the proceeding resumes. So far, we all seem to be holding up well and those of us in the courtroom have developed our little routines of bathroom breaks, lunch, stretching, and butt rubbing from the excruciating pain we are experiencing from sitting on those tortuous courtroom benches. The attorneys, for their part, ignore us. It is hard to know how Nathan is doing, as his role consists only of merely sitting and observing, although this morning I heard Nathan humorously comment on the massive necklace of balls that one of his attorneys was wearing. This is the first I have heard Nathan audibly speak all week.

We pick up where we left off yesterday evening with the continued questioning of Dr. Spiegle. It seemed important to the prosecution to make sure Dr. Spiegle heard all of Craig Truman’s testimony yesterday, as Ms. Rosenthal went back over practically every question that Mr. Truman was asked. There were also questions directed at Dr. Spiegle as to Nathan’s competency, where the actual money came from to pay Mr. Truman, what was the definition of deliberation, were typical 16 year olds able to follow rules and establish right from wrong, and what is the difference between fantasy and deliberation in terms of thinking about an act hours before you do it? The prosecution then discusses how circumstantial evidence is used. They are trying to establish and confirm that Nathan deliberated over and planned to kill his mother hours before he did it.

Suddenly the prosecution pulls a doozy and requests that Nathan be required to take off his shirt and allow Dr. Spiegle to identify the marks he saw so long ago. This takes the defense by surprise and they request that it be done in chambers to maintain Nathan’s physical privacy. The judge suggests doing it during the morning break when the public leaves the courtroom. Ms. Rosenthal wants it done now because she claims she is almost finished. Judge Hopf relents and we are asked to leave the courtroom while Nathan is subjected to this inspection.

Ms. Rosenthal asks Dr. Spiegle to confirm that he is currently on the board of The Pendulum Foundation, how many meetings he has attended,and how much he has been paid by Pendulum. The prosecution reports that he was paid $19,500 and Dr. Spiegle doesn’t dispute it, although he states that it was a long time ago and he doesn’t do his own bookwork. The prosecution then rests in their questioning of this witness.

The defense redirects with a few questions, approaching the witness and showing Dr. Spiegle a document from Centennial Peaks regarding Nathan’s suicidal ideations long before the murder of his mother. Dr. Spiegle is then asked if it is his opinion that Nathan killed his mother on impulse; Dr. Spiegle again replies yes. Chad Williams goes over other factors Dr. Spiegle used to form this opinion.

The defense also questions Dr. Spiegle about Nathan’s repeated abuse and Craig Truman’s testimony that if Roger Ybanez was the principal intimidator and abuser that really didn’t matter because Nathan killed his mother. The prosecution objects to Dr. Spiegle testifying about something Mr. Truman testified about on the grounds that he is a psychiatrist and not a legal expert. The judge asks the defense to rephrase the question in the context of the witness’s area of expertise and the defense is allowed to continue. One got the underlying inkling that there had been previously established waters of testimony that neither the prosecution nor the defense would wade into (such as Nathan’s sexual abuse by both parents). Dr. Spiegle picks up the elephant in the room with his 5 foot self and only addresses issues of intimacy where emotions are concerned, not physical intimacy or abuse.

Dr. Spiegle went on to elaborate that he is of the expert opinion that Nathan killed his mother because of the lost fantasy Nathan had of wanting his mother to protect him from the abuse of his father, her unreasonable demands and emotional needs, statements of her not wanting him, feeling unloved and emotionally abused by his mother, and how his buildup of unresolved rage, combined with his physical and emotional abuse, did not result in a deliberative act of murder. Dr. Spiegle stated that it was Nathan’s perception, as made clear from his mother, that Nathan was only present to meet her needs, she was not there to meet his, the child. All of this resulted in Nathan’s disinhibited rage.

The defense points out and Dr. Spiegle testifies to, the fact that Nathan was re-traumatized over and over again when he was returned home to his parents time and time again after running away 3 times, asking the police, friends, his friends’ parents, and Centennial Peaks for help. He possessed a sense a hopelessness that no one was ever going to help him, protect him, or render any relief from his situation.
The defense then asked Dr. Spiegle if mental abuse is any less important than physical abuse. Dr. Spiegle replied that it was not.

Prosecution re-directs examination with various questions regarding what Dr. Spiegle knew or didn’t know regarding Julie Ybanez being concerned with Nathan’s well being, skipping school, using drugs and alcohol, and seeking counseling for him, again pushing the pablum that Julie Ybanez was Super Mom.

The prosecution then asks about the various psychiatric tests that Nathan underwent, both by Dr. Spiegle and while at Centennial Peaks. The prosecution pointed to test results that said Nathan was hedonistic, self-centered, and used individuals for his own needs with no regard to their feelings. When asked by the prosecution if Dr. Spiegel thought Nathan was indeed hedonistic and self-centered Dr. Spiegel replied that you can’t just look at the results of a psychiatric test and determine that yes or no, an individual is this or that, you have to look at the individual circumstances of that person’s environment.

The prosecution, in wrapping up, tries to back Dr. Spiegle into a corner by again stating that because Nathan “planned” his mother’s murder for 10 to 12 hours beforehand, did that not make it deliberate, or was it still just a fantasy even though he acted upon it? Dr. Spiegle stuck to his expert opinion that because of everything that had been building in Nathan over years and years, Nathan feeling trapped and feeling that his mother had quashed his plan to run away the night of the murder, Nathan’s only way out in his frenzied mind was for something to end, for him to either kill himself or his mother, or else it was never going to stop. He could not cope any longer.

The prosecution finally rests in their questioning of Dr. Spiegle and the defense only redirects one last time with 2 more questions, one of which is objected to by the prosecution and subsequently withdrawn, the other question is merely to confirm that Nathan did indeed have suicidal ideations long before Julie Ybanez was killed.

Jim Aber, an attorney, is the next witness to take the stand. He is a criminal defense attorney who has been practicing law since 1982. He handles only felonies at this juncture in his career, although previously he had been a public defender for 26 years. His other basic relevant resume items are then gone over. Mr. Aber has tried over 100 cases in his career, including homicide and capital cases, and a number of high profile cases here in Colorado (Corey Zorn, Albert Petrosky, Samuel Quintana). He has been involved in about 10 direct file cases of juveniles.

Mr. Aber has reviewed most of the documents concerning Nathan, his trial, and those of Erik Jensen as well. He is very well versed in all and brings no notes with him for testimony today. His opinion is that Nathan did not receive effective counsel. He was initially shocked after reading the transcripts that a whole murder trial, including jury selection, motions filed (one), and witnesses called, took a total of 3 days. A big huge red flag to Mr. Aber was the lack of any investigation at all by Craig Truman. Erik Jensen’s murder trial took seven days in comparison to Nathan’s three, although Mr. Aber considered that to be too short a period of time to conduct an effective murder trial as well. Mr. Aber also noted that Mr. Truman made absolutely no objections, not a single one, during Nathan’s trial. Mr. Aber also agreed with Marcy Glenn’s previous testimony and further agreed that there is absolutely no ambiguity as to whether or not Mr. Truman was operating under a conflict of interest. His opinion was that this was not a waivable conflict.

Mr. Aber then goes down the extensive laundry list, in chronological order, of all the events of the previous trial in which Craig Truman committed egregious, unthinkable, irresponsible legal acts in his “representation” of Nathan. He also outlines what WOULD have comprised an effective legal defense for Nathan in order to establish to a jury that this was NOT a premeditated, deliberate act of murder. NEVER, he opined again, does evidence in a murder case take one day. A typical murder trial takes weeks, sometimes months; never days.

I am rolling like a pig in mud at this point, reveling in his every word and wanting to run across a daisy filled field in a white cotton dress to kiss this man while Julie Andrews sings the title track from The Sound of Music. I refrain physically, going there in my mind instead to take my thoughts away from my aching ass momentarily.

After his chronological dissertation, the prosecution takes over the questioning of Mr. Aber. She makes a feeble attempt to get Mr. Aber to agree to any of her points; he is incredibly sharp and dodges every kickball she throws at his brick wall. He ain’t playin. He gives up nothing and his credibility and testimony remain intact.

Inexplicably to me, however, when asked by Ms. Rosenthal what she thought Mr. Truman’s reputation in the legal community was, Mr. Aber said he thought Mr. Truman had a good reputation, although he was probably more well liked by prosecutors than defense attorneys. He also said he considered Mr. Truman a friend. Wha…..??? Now, see, this is what I don’t get about attorneys. How is it that you can get up on a witness stand or oppose counsel in court, rip each other a new one, and then at the end of the day slap each other on the back and go drinking? Relationships with me are just a tad more black and white. If I would want to scratch your eyeballs out in a courtroom, I’m pretty sure I would want to do it after hours as well. But go figure, that’s just personally how I roll.

Ms. Rosenthal, for her part, must be wearing down. Her questioning of Mr. Aber lacks her usual snotty tone and doesn’t last as long as I thought it would or should have, given her attention to detail. Mr. Aber just wasn’t serving her purposes and she had no further use for him. She ends her questioning at 2:50 pm.

The defense cross-examines with only 2 questions, getting Mr. Aber to reiterate his point that if a defense attorney is faced with as insurmountable of a conflict of interest as Mr. Truman was, then the conviction of his client cannot stand. Mr. Aber steps from the witness stand and we take our afternoon break. Up next, I overhear, Roger Ybanez is to take the stand.

After the break, Nathan’s friend Julie returns and comes to sit close to me and be closer to Nathan. We had spoken the day before and she is a lovely person. I imagine that she has moved closer to Nathan as if to offer herself as a human shield between Nathan and his father, sensing his apprehension. It is obvious now as Nathan is brought back in from his holding cell, that he is purposely trying not to show any emotion. For the first time, he looks nervous, his eyes blinking rapidly.

Roger Ybanez finally walks into the room and sits in the front row behind the prosecution. I recognize him immediately from the pictures that appeared in the Rolling Stone article. He is older now of course and looks like a cross between Ferdinand Marcos and Mao Se Tung. I would find out shortly that his personality resembled them as well. Living in Rail Rock, Texas now, I wondered how the defense had managed to find him and serve him with the subpoena.

I had fully thought that Nathan would not even want to acknowledge his father in the room, but he seemed curious to look at him, sending surreptitious glances his way. I suppose after not seeing the man who is your father for 10 years, a glance or two is not out of order. The judge enters the courtroom, Roger Ybanez is sworn in (“do you swear under penalty of perjury that the testimony you are about to give shall be the truth and nothing but the truth, so help you God “– HA! Yeah, SURE judge, whatever you say) and takes the stand.

Mr. Gallagher affirms to Roger Ybanez that other than his brief introduction out in the hall, he and Roger have never spoken before, nor has Roger Ybanez ever met or spoken to any other member of Nathan’s defense team. Mr. Gallagher then begins to review past facts of the trial. When asked if Mr. Truman asked Roger to intervene with Nathan when Mr. Truman complained to Roger that Nathan wasn’t cooperating with him, Roger replied yes. This happened about 3 or 4 times. Really? So essentially, go to the jail Roger and bully Nathan further and tell him to cooperate, even though you’re a prosecution witness. Really? Alrighty then.

Mr. Gallagher then affirms the 3 pronged role Roger Ybanez played during Nathan’s trial. He was a victim of the crime because his wife had been murdered, correct? Yes, Roger replied. And were you not also acting as a guardian to Nathan? Yes, Roger replied. And were you not also a witness for the prosecution? Yes, Roger replied.

Mr. Gallagher then confirms that when Roger found out his wife was dead and that Nathan was involved, he stated to the police, “I don’t know if I want to see him or not, I’ll probably beat the shit out of him”. Roger claims not to remember, as he was pretty upset. Mr. Gallagher then shows him a police report document where Roger did in fact make this statement. When Nathan was brought into the room at the police station, Roger then stated, “You’re a sick fuck, I can’t stay in here with you” and left. Roger then admits he made these statements, but only because he has to because they appear on the police statement.

I am watching Nathan while his father is on the stand. When all of the other witnesses have testified, Nathan has sat basically looking down, at the table, or at the computer screen where the transcript is flashing by. When his father takes the stand, Nathan looks at him for much of his testimony. Roger never once looks at him.

Mr. Gallagher is going down his list, checking off his points one by one. He asks Roger if Mr. Truman ever discussed with him any ethical problems with Roger having hired Mr. Truman and also being a witness for the prosecution. No, replied Roger. Was anyone else besides yourself acting as a guardian for Nathan? No, replied Roger. Roger also admits that Nathan was not able to comprehend what was going on after his arrest and during the subsequent trial.

Roger is then forced by the defense to admit that he also made the statement Nathan “must have lost it” when finding out that Nathan was responsible for his wife’s death. He admitted that Nathan had never struck his mother or been violent with her in any way in all of his 16 years and stated that he would have also admitted such had he been asked at Nathan’s trial but was never asked. Mike Gallagher then asked Roger about the threat that Erik Jensen had made to Julie Ybanez that he was going to kill her when Nathan was not even present at the time. Roger said Julie had told him this and had been very distraught at the time and took the threat very seriously.

Mike (I CAN call you Mike now can’t I after spending the last three days with you?) questions Roger about the amount of stress in the household in the previous months leading up to Julie’s death and of the physical altercation that Roger and Nathan had in which he choked Nathan. Roger admits that there was alot of stress in the household and tries repeatedly to attribute it solely to Nathan's problems. Mike doesn't let him and is quick to point out that there were other things as well that were contributing to his and Julie's arguments (it was widely thought at the time that Roger was having an affair, although for the life of me I'm always amazed when these dirtbag abuser men keep finding women who want to be with men like this). Roger states that he does not ever remember talking to anyone at nor going to Centennial Peaks Hospital and STILL, to this day, will not admit to choking Nathan. He said, “I told Craig Truman that I threw Nathan up against a wall and had him around his neck”. Oh, OK. But you didn’t choke him. You were merely lovingly holding him around his neck and by your definition that’s not choking. Really?

Mike’s line of questioning then went to how Nathan was before the family came to Denver. Roger admitted that Nathan was a very unemotional kid and very rarely cried, to the point that his wife thought something was seriously wrong with Nathan. He had a very flat, unresponsive way of dealing with everything and it was very difficult to engage him. Roger denies knowing that Nathan wanted to commit suicide around this time when they were living in Omaha, Nebraska and Nathan was 11. Mike again gets out an exhibit that points to this fact. Roger then replies, “well I don’t know that Nathan ever talked about suicide, but he did write something in a book where he talked about ending his life”. Which……….is…….the………..definition………..of…………….suicide………..right??????? Seriously, is this guy for real?

Mike then questions Roger about Social Serivces being called regarding physical violence in the Ybanez household. Roger admits that several people called Social Services, but an investigation was never launched. Roger was also asked about Centennial Peaks, why the family never returned for counseling after only going a few times, why Nathan was never taken back to Centennial Peaks for a recommended complete psychological workup, why Julie Ybanez complained to Roger about his lack of involvement in the family counseling, and exactly why Nathan was brought to Centennial Peaks in the first place. It wasn’t just for drugs, but it was also because of the incident where Roger choked him, smashed stuff in Nathan’s room, and Nathan ran out of the house in fear wearing nothing but his underwear.

Mike goes into more specific items of abuse with Roger. He asks Roger if he remembers when they were living in Germany and a caregiver beat Nathan and locked him in a closet for a long period of time. Roger replied that the caregiver did not beat Nathan, but did lock him in the closet. Mike asks Roger if he considered the treatment of Nathan by the caregiver to be inappropriate. Roger replies yes. (Why? Because you didn't get a piece of the action?) Mike then asks Roger if he had ever been verbally abusive to both Julie and Nathan. He admitted he had been and that Julie had asked him to stop. He admitted to slapping Nathan and various other things, but always claimed “it was just that one time”. He admitted knowing that Nathan slept with a baseball bat, probably because Nathan was afraid of him after the choking incident in which Julie had asked him to “scare some sense into him” in order to get him to change his behavior. Yeah, cause that’s how that works, dumbass.

The judge then allows questioning from the defense, under strenuous objection from the prosecution which is subsequently overruled, about Roger Ybanez’s upbringing and abuse by his own father. Roger offers that his father used to “spank” him, but only up until he was in the 7th grade. He also states that he had a sister who was "allegedly" or "supposedly" being molested by Roger’s father. She moved out of the house to live with a foster family and was subsequently murdered years later when she became older. And who was the prime suspect in her murder, Mike asks? Roger replies his father was, although he was never brought to trial for it.

For those of you out there who read the article in Rolling Stone, we all know Roger was lying through his forked tongue at this point. His father used to regularly beat him to within an inch of his life, starting when he was as young as two, and the only reason his father was never brought to trial for the murder of his sister was because he had already begun suffering from an advanced state of dementia brought on by his alcoholism. The police officer who investigated the case, along with Roger’s mother, both state unequivocally they have no doubt that Bernie Ybanez killed his daughter and buried her in a shallow grave alongside a lonely country road.

Mike establishes with Roger that Roger pretty much moved out of the apartment and split with Julie soon after the choking incident with Nathan. At this point, we have come right to 5 pm and it is useless to begin another topic. Roger’s testimony will continue tomorrow. Court adjorns.

As I am packing up my things, I am close enough to Nathan and his attorneys to hear Chad Williams ask Nathan how he is holding up. Nathan replies that today was pretty nerve wracking. Ya think? I have a feeling that tomorrow will be more of the same. I know it is tough on Nathan to go through this hearing and have all of this re-hashed once more, but the testimony of his father is proving to be very effective for the defense and the prosecution knows it. I can’t wait to see what the morning brings. Good night all.

Nathan Ybanez Hearing - Tuesday February 24, 2009

Tuesday morning brought no more interruptions from other cases and we picked up promptly where we left off last night with the questioning of Craig Truman. Mike Gallagher was extremely thorough in once again picking apart absolutely everything Mr. Truman did in Nathan’s previous trial. Craig Truman strikes me as your typical, cocky, arrogant, good ole boy lawyer. A man now in his late 50’s I would guesstimate, his best years behind him. During breaks in the proceedings, he could be seen chatting and joking amiably with the prosecutors. From the defense team, he kept his distance, his seeming disdain for them apparent with having been subponeaned and once again coupled with Nathan. I suspect that once he sent Nathan off to life in prison without the possibility of parole at his sentencing he never expected to see him again. Now here he was, himself spending more time on the witness stand than Nathan’s whole trial practically took. It was as if he felt the defense had some nerve asking a fellow attorney to come down here, spend several days and be inconvenienced in this way, much less have his methods of conducting law questioned. I couldn’t look at him for long without wanting to spit on him. It was apparent from his demeanor that I didn’t have to wonder how he could sleep at night; with his arrogance and ego for pillows I had no doubt he slept like a baby. We all know someone like him; an individual who feels he should never be questioned, held responsible for, or was culpable for anything. Yes ladies and gentlemen, it’s a fine line between human being and sociopath.

The questioning of Craig Truman by Mike Gallagher wrapped up by the morning break. Even though Mr. Gallagher got Mr. Truman to admit to a great many things he didn’t do or coulda woulda shoulda done at Nathan’s previous trial, it was somewhat unclear to me whether or not Mr. Gallagher effectively made his point to the judge that what Mr. Truman did or didn’t do was necessarily unethical. I guess we’ll see.

Cross examination of Mr. Truman by the prosecution began at 10:00 am. Mr. Truman was asked to briefly leave the courtroom while the prosecution raised the question to the judge as to the issue of who was paying the current defense for Nathan’s legal costs and whether or not the defense had adhered to the current rules on ethics regarding having proper written engagement documents between their firm and the individual paying Nathan’s legal feess. The prosecution seemed to be fishing for the name of exactly who was footing the bills. The judge asked the defense, without requiring them to name Rolling Stone or Jann Wenner, as to whether or not these rules had been adhered to. Mr. Gallagher replied, “We absolutely have Your Honor”. :P So there.

The prosecution then continued with their questioning of Mr. Truman and the previous transcripts from the trial. Their intent, of course, was to continue on their quest to show that Nathan had a drug problem, was violent, repeatedly in trouble with the police, and resisted all attempts by his parents to help him.

I have, with good reason, not gone into the minutiae of detail that was gone into during Mr. Truman’s questioning, mostly because I want you to stay awake so you’ll keep reading my blog. The questions covered Mr. Truman’s knowledge of Nathan’s abuse, Nathan’s psychological reports that Mr. Truman never requested nor brought up at the trial, Nathan’s running away, the runaway reports, conflicts of interest, ethics, Mr. Truman’s lack of confronting Roger Ybanez on the stand during the trial because he was being paid by Roger. The prosecution also spent a copious amount of time focusing on the events of the day of Julie Ybanez’s murder.

To his slimebag credit, Mr. Truman did seem to regroup this morning, seemingly intent on “setting the record straight”, even if that record contradicted what he said yesterday. Based on the fact that Mr. Gallagher yesterday drove home the point that Roger Ybanez paid for Nathan’s legal fees during the murder trial when he himself was a prosecution witness, Mr. Truman’s story seemed to change overnight and he now claimed that Nathan’s maternal grandmother was the one who fronted the funds. Once the grandmother found out the exact circumstances of the case and situation, she refused to provide any further financial assistance. This seems to now let the prosecution off the hook of having to prove there was any conflict of interest. We’ll see.

I was also surprised to find that it is and was Mr. Truman’s belief that it was Erik Jensen and Brett Baker who convinced Nathan that he was indeed abused and should kill his mother and participated more in the actual act than they may have actually done. I have never had the privilege of speaking to the Jensens to hear their side of the story concerning Erik.

After lunch the prosecution’s cross examination of Craig Truman resumed. The prosecution seemed to want to go over and over the grisly details of the day of the murder and point to their belief that Nathan planned and plotted this crime between himself and his friends and then carried out the crime with their assistance and support, mainly from Erik Jensen. The prosecution also wanted to hammer home their point that Mr. Truman did not have a conflict of interest with Roger Ybanez, that Nathan’s legal fees were NOT paid by Roger Ybanez, and that Mr. Truman had no allegiance or ties with Roger Ybanez. Yeah. Right. OK. Whatever.

FINALLY, the prosecution rests in their cross examination. The defense asks a few more questions and then he rests as well in his questioning of Craig Truman. The scumbag is free to go and we no longer have to look at him. Buh bye. Your village called, Mr. Truman. They have your rock waiting for you to crawl back under.

Camille Mottl, best friend of Julie Ybanez, is then brought forward as the next witness. It is difficult to tell now which witness is whose. I thought Camille was a witness for the defense, but she testified against Nathan at his previous trial and goes on today to describe Julie as a very good mother who loved her son, wanted what was best for him, and was concerned about the direction his life was taking. She did not meet Roger Ybanez until later, and was aware only of his bluntness and oppressive nature. The prosecution is quick to point out, using Camille as a club, that she NEVER witnessed any abuse or even verbal abuse; at worst Roger Ybanez was controlling and had a short temper, not necessarily the criteria for abuse according to the prosecution. Camille is not long on the witness stand.

We take a 10 minute break before moving on to the next witness, and when I return from the restroom there is a young,tall, blond woman sitting in the front row making silent conversation and eyes at Nathan. Whoa! Talk about acknowledgement and emotion. This is more emotion than I’ve seen in Nathan in 2 whole days of staring at him. I can’t sit down fast enough to lip read the exchange they’re having . She abruptly leaves, but not without a final, sad, and desperate look behind her at Nathan. He does not watch her leave. Hmmm. Wonder who THAT was? I find out later that she had given one of the defense team a picture and requested that it be given to Nathan. The sheriff, however, quashes this request.

Dr. Richard Spiegle, forensic and clinical psychiatrist, then takes the stand for the defense. He covers his background, education, and degrees. He attended both Ohio State University and Bowling Green (all right, an Ohio State alumni, a hometown hero, a fellow Ohioan, rock on, how about dem Buckeyes? ), among others. The man’s education and dedication to his field are staggering. He passes all my standards and then some, he’s good to go in my book. I tune out the rest of the blah blah blah of his practice and experience and wait for more. I don’t have long to wait. The prosecution doesn’t seem to present many pertinent or interesting questions. The defense, however, does.

Dr. Spiegle treated Nathan from 2004-2006. It is his opinion, among many others, that Nathan, being 16 years old at the time of his mother’s murder, his brain was not developed enough to be able to make sufficient decisions or determinations. In addition, it is his opinion that having Roger Ybanez constantly present at Nathan’s trial when Roger was the primary perpetrator in Nathan’s life, as well as paying for Nathan’s defense, was highly damaging to Nathan at his trial.

Dr. Spiegle testifies that a youth’s brain is not sufficiently developed until around the age of 22 or 23. At the age of 16, a child is not able to sufficiently fend off impulsivity. There has been extensive research around children who were subjected to high stress and chaos early on in their lives; these children grow up having problems with their cognitive abilities and a diminished ability to make good judgements and decisions. When asked if Nathan was capable of deliberating to kill his mother, Dr. Spiegle admitted that while Nathan contemplated killing his mother and of killing himself, he did not have the ability to make a plan to kill his mother. Was the act of killing his mother an impulsive act? Yes, Dr. Spiegle replied.

A lot has been made by the prosecution of Nathan’s lack of emotion, of him having a “blunted affect”. Dr. Spiegle testified that this can be due to an individual having Early Life Stress Syndrome, past trauma in his family, and/or a possible chemical imbalance in his brain.

The scars on Nathan’s back that both Dr. Spiegle and another doctor (Dr. Serotnik?) examined were then brought up. The prosecution objected to Dr. Spiegle being able to give an opinion based on another doctor’s opinion who is not present as a witness today. The judge overrules and allows the defense to proceed. Dr. Spiegle testifies that these scars are “specifically inflicted trauma” that was well and long healed, and consistent with abuse.

The prosecution cross examines again. Ms. Rosenthal of the prosecution points out that Dr. Spiegle was present during Craig Truman’s testimony in which Nathan “planned” (the prosecution’s word) to kill his mother earlier on in the day that she was murdered. She then launches a calculated tactical attack of Dr. Spiegle in which she begins asking him rapid-fire questions regarding if Nathan told Dr. Spiegle about all the grisly details of the murder, rehashing every single one of them again. Dr. Spiegle remains calm, saying things like, “I don’t remember, no, he didn’t, it’s in my notes”. Then she springs what I suppose is her version of an ace in the hole. She asks how Dr. Spiegle was first contacted in this case to examine Nathan. Dr. Spiegle replied that he was first approached by Tim Firth, a member of The Pendulum Foundation. What? The Pendulum Foundation you say? Who started The Pendulum Foundation? What? Erik Jensen’s parents you say? How interesting! (She didn’t really say this, but I’m paraphrasing based on the smug look on her face). Ms. Rosenthal wants this established to lay a foundation of prejudice on the part of Dr. Spiegle.

The remainder of the questions asked by the prosecution for the day pertained to whether or not Dr. Spiegle ever reviewed the 2500 pages of documents from the previous trial and murder investigation. Dr. Spiegle replied some, but not all. Having reached the 5 o’clock hour, court is adjourned for the day and Nathan returns to his holding cell without looking at anyone.

Anxious to get this posted, I leave you with your own collective thoughts from the day. Good night.